According to a recent report published by the Pew Research Center, there are more than 11 million unauthorized immigrants in the United States. While significant numbers are children who are not employed, unauthorized adults make up more than 5% of the U.S. labor force – more than 8% of New Jersey’s workforce.
Unauthorized or Undocumented: What’s the Difference?
Within the context of workers’ compensation law, unauthorized immigrants are sometimes referred to as “undocumented workers” (some states still call them “illegal aliens”). Whatever the label, unauthorized/undocumented workers can become caught up within a legal tug-of-war if they sustain a work-related injury.
Federal Immigration Law Prohibits Employers From Hiring Undocumented Workers
The not-so-gentle “tug” starts with the fact that, under the Federal Immigration Reform and Control Act (IRCA), undocumented workers are not authorized to work in the United States. Employers who hire them can be subject to significant fines or worse. For example, an employer who knowingly uses undocumented workers faces fines as high as $16,000 and, if a pattern of violations is found, the employer can face jail time.
If it is illegal to hire an undocumented worker, how can eight percent of the New Jersey workforce be unauthorized? There are a number of factors.
- Some employers just take the risk and look the other way, particularly if they think that they can take advantage of the situation by offering the unauthorized worker substandard wages. Generally, unauthorized workers are also quite reluctant to file a workers’ compensation claim.
- Some unauthorized workers use fake identification. In fact, one recent news report indicated that a Kansas DMV employee allegedly “sold” fake driver’s licenses to unauthorized workers for $2,500 each.
- Some unauthorized workers “share” identification information. Here, the underlying documents are real; they just don’t belong to the worker presenting them.
Most Unauthorized Workers Are Covered by Workers’ Compensation
Despite the fact that IRCA makes it illegal to employ anyone who is not authorized to work in the U.S., virtually all states, including New Jersey, provide workers’ compensation benefits for unauthorized workers who would otherwise have a legitimate workers’ comp claim. There are a number of policy arguments favoring coverage:
- If an employer (or its insurance carrier) was relieved of the responsibility of paying workers’ compensation benefits to unauthorized workers, it would operate as a “reverse incentive,” rewarding the employer who has failed to abide by the law.
- The purpose of making a type of employment illegal is not necessarily to penalize the worker. For example, it is generally illegal to hire a minor to perform extra-hazardous work. If a worker lacks sufficient age, is hired, and is injured, requiring a forfeiture of workers’ compensation benefits is adding insult to injury.
- Under the workers’ compensation concept, the price of the employer’s good or service is supposed to reflect the total cost of producing or supplying it. If the cost of injuries to unauthorized employees is not included in that equation, the unscrupulous employer wins.
Sustained a Work-Related Injury? Are You an Unauthorized Worker?
If you have sustained a work-related injury and are concerned about your immigration status, you need to discuss the situation with a caring, experienced workers’ compensation attorney. Anything you say during the meeting will be considered privileged. The issues surrounding any workers’ compensation claim can be quite complex and you need skilled counsel to help you understand your rights.
The legal team at Petro Cohen, PC can help you review the important details of your injury and claim. We have the experience and know-how to give you an honest assessment as to the compensability of your injury. Our attorneys are skilled at effectively managing an employee’s claim and negotiating a favorable settlement. Claims regarding workplace injuries can be complicated, but Petro Cohen, P.C. has the experience to handle them. Call toll-free today at (888) 675-7607, or fill out our online contact form and we will be in-touch promptly.